MD v Secretary of State for Defence (AFCS) (War pensions and armed forces compensation : Armed Forces Compensation Scheme) [2015] UKUT 0298 (AAC)
[86]“it cannot be the case that we can construe this Scheme in accordance with the unexpressed intentions of the draftsmen. Nor can any subsequent amendments be relevant to our interpretation ”. An outline of the Secretary of State’s submissions 16. Mr Heppinstall accepted that the Scheme cannot be construed in accordance with the unexpressed intentions of those responsible for its drafting. However, his principal submission was that for two reasons it was in any event sufficiently clear from the wording and structure of Table 9 as a whole that Item 2 does not extend to the effects of traumatic back injury. First, “or other pathology” must be understood in the context of the specific condition that is expressly referred to, namely septic arthritis. Accordingly, it connoted some sort of infection or disease but not trauma. Second, the Tariff makes specific provision elsewhere in Table 9 for traumatic back injury, including where this has resulted in the need for operative treatment (see Items 2A and 16A). This implied that it was never contemplated that Item 2 would extend to traumatic back injury. The Upper Tribunal’s conclusions 17. The statutory language in Item 2 of Table 9 – “septic arthritis or other pathology requiring arthrodesis, osteotomy or total joint replacement” – is undoubtedly ambiguous. On a literal reading it could be read either way. Adding words to clarify its meaning, Mr Tucker says its means “septic arthritis or any other pathology requiring arthrodesis (etc)” whereas Mr Heppinstall submits it means “septic arthritis or any other similar or related pathology requiring arthrodesis (etc)”. A purely literal approach to statutory interpretation is therefore unhelpful. Rather, in accordance with the general principles of statutory interpretation, I must have regard both to the context and the purpose of the statutory drafting. 18. The statutory context is both particular and more general. In particular, the words “or other pathology” immediately follow “septic arthritis” and so take their colour from and are qualified by that medical condition. The word “other” is there for a purpose, and that purpose is to make the link between septic arthritis and what follows. In effect Mr Tucker is inviting me not so much to read words in – both representatives were seeking to do that – but to read words out, and in particular to ignore “other”. On his analysis, the descriptor simply reads “septic arthritis or any pathology requiring arthrodesis (etc)”. 19. More generally, the context requires consideration of the Tariff as a whole. The Tariff is a very detailed code which makes specific provision elsewhere for traumatic back injuries (see e.g. Item 16A of Table 9), further suggesting that “or other pathology” in Item 2 of Table 9 had to be read in the sense advocated by the Secretary of State. 20. The underlying purpose of the Scheme must also be relevant. The complex matrix of Tables, Items and related levels in Schedule 3 is intended to ensure that the most serious injuries receive the higher levels of compensation. The descriptors are said to represent a ‘Description of injury and its effects’. If “or other pathology” is read to mean “or any pathology”, whether or not it is related to or similar to septic arthritis, then the reference to septic arthritis itself loses any real purchase. The descriptor for Item 2 of Table 9 might just as well say simply “Any pathology requiring arthrodesis, osteotomy or total joint replacement.” On that basis “septic arthritis” is mere surplusage. In that event, the nature of the underlying condition becomes irrelevant, and the sole focus is on the nature of the treatment required, which in turn may be a very poor guide as to the severity of the effects of the condition in question. As Mr Heppinstall argued, that cannot be consistent with the purpose of the Scheme. 21. For those reasons I agree with Mr Heppinstall’s submissions on the proper construction of Item 2 of Table 9. It follows that the majority members in Mr D’s case directed themselves correctly as to the law on this aspect of the appeals, as did the unanimous First-tier Tribunal in Mr W’s case. The minority member in Mr D’s case adopted an unduly literal reading of Item 2 which failed to construe the statutory language in both its particular and wider context and was inconsistent with the statutory purpose. 22. I therefore reject the Appellant’s grounds of appeal based on both First-tier Tribunal’s approach to the proper interpretation of Item 2 of Table 9. However, that is not the end of the matter. Although I have decided that point of construction against both Appellants, their appeals each succeed on other grounds. Mr D’s appeal to the Upper Tribunal (CAF/2049/2014) 23. The Secretary of State supported Mr D’s appeal on another ground, namely that the First-tier Tribunal’s majority decision entailed a lack of reasoning as to the effect on functional restriction and limitation, which was relevant to Item 16A of the Tariff. Mr Heppinstall further argued that by virtue of Article 26 the Secretary of State could make a temporary award at the level he considered appropriate in a case where the claimant’s injury is of a description for which no provision is made in the Tariff in force at the relevant time. Accordingly, just because neither Item 2 nor Item 6 were found to apply in this case, it did not necessarily follow inexorably that the First-tier Tribunal had no choice but to decide that Item 16A was the applicable level. The Respondent accordingly supported remittal on that basis alone. 24. Mr Heppinstall and Mr Tucker were therefore in agreement that the appeal in Mr D’s case be allowed for insufficiency of reasons. I accept their joint analysis on this point, allow Mr D’s appeal for that reason alone and set aside the First-tier Tribunal’s decision for that error of law. The Upper Tribunal is not in a position to substitute (or to “re-make”) its own decision. This means that the appeal will need to be re-heard on the facts by a differently constituted First-tier Tribunal. 25. The outcome of the re-hearing depends on the view taken by the new First-tier Tribunal of all the evidence in the case. An award for item 2A of Table 9 may or may not be appropriate in this case. The fact that this appeal has succeeded on a point of law is no indicator one way or the other as to the likely result of the re-hearing, which will be determined on the facts. 26. The following directions apply to the re-hearing (and as supplemented by any further directions by a Tribunal Judge in the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal) :(1) The rehearing will be at an oral hearing.(2) The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.(3) The new tribunal must consider all the evidence afresh, including any new evidence, and is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal. Mr W’s appeal to the Upper Tribunal (CAF/3835/2014) 27. In Mr W’s case, aside from the question of the proper interpretation of Item 2 of Table 9, there were three other grounds of appeal. These were that the First-tier Tribunal had erred in law by (i) failing to take into account all the medical evidence when dismissing the appeal; (ii) failing to address the proposal made by Mr W’s representative that the case be referred back to the Secretary of State to consider a temporary award at level 9 (to enable a final award to be made when Item 2A of Table 9 was introduced); and (iii) failing to consider the Secretary of State’s proposal for a consent order for a temporary award at Item 4 of Table 4. 28. In written submissions on the Upper Tribunal appeal, the Respondent conceded that there was force in those other three grounds and so supported the appeal and proposed that the case be remitted for re-hearing. 29. By the time of the oral hearing matters had moved on and the Secretary of State now accepts that both the length of time Mr W had remained on sick leave at home and the dominance of intractable pain requiring powerful medication should result in a different outcome. He has therefore concluded that the most appropriate descriptor for the injury in question is Item 2A of Table 9. The Respondent therefore invited me to make a consent order in those terms, a course of action which Mr Tucker agreed to on behalf of Mr W. I therefore issued a consent order in the following terms on the day of the hearing: CONSENT ORDER Having heard today from Mr Glyn Tucker of the Royal British Legion for the Appellant, and from Mr Adam Heppinstall of Counsel instructed by the Government Legal Department for Veterans UK, to the effect that the Secretary of State is willing to invite the Tribunal to make a consent order in the terms set out below and that the Appellant agrees to the making of a consent order in the terms set out below; And as the Upper Tribunal is satisfied that it is appropriate to make a consent order disposing of these proceedings pursuant to rule 39(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2685); IT IS DIRECTED: 1. That the Appellant’s appeal against the First-tier Tribunal’s decision of 7 January 2014 is allowed and the First-tier Tribunal’s decision is accordingly set aside and re-made; 2. That the Appellant is hereby placed on AFCS Schedule 3, Table 9, Item 2A of the Tariff, namely “Traumatic back injury resulting in vertebral or intervertebral disc damage and medically verified neurological signs, which has required, or is expected to require, operative treatment and which is expected to result in permanent significant functional limitation or restriction.” 30. The First-tier Tribunal’s majority decision in Mr D’s case and unanimous decision in Mr W’s case adopted the correct interpretation of Item 2 of Table 9. I dismiss the grounds of appeal on that point. 31. However, for other reasons in Mr D’s case, I conclude that the decision of the First-tier Tribunal involves an error of law. I therefore allow his appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case is to be remitted for re-hearing by a new tribunal subject to the directions and guidance above (section 12(2)(b)(i)). 32. In Mr W’s case, I agree the proposed Consent Order, which involves re-making the decision under appeal in the terms as set out above (rule 39(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2685)). Signed on the original Nicholas Wikeley on 28 May 2015 Judge of the Upper Tribunal
Cited in 1 later judgment